State v Balakau [1996] PGNC 11; N1528 (4 June 1996)

Unreported National Court Decisions

N1528

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

CR NO. 575 OF 1992
THE STATE
v
JEFFREY BALAKAU

Waigani

Batari AJ
3-4 June 1996

CRIMINAL LAW - Practice and Procedure - Application for adjournment - Application to be considered on its own facts - Special and convincing reasons - Interest of injustice - Consent - Not special and convincing reason.

CONSTITUTION - s. 37(3) - Right to “unfair trial within a reasonable time” - Breach of unreasonable delay - Consequential orders - Whether entitlement in accused to immediate remedy - Competing interests - Right of accused to speedy trial and right of people for accused to stand trial.

CRIMINAL LAW - s. 552 - Criminal Code - Remedy for delayed trial.

Cases Cited:

State v Peter Painke [1976] PNGLR 210

State v Jackson Tita Toamara & Anor (unreported National Court Judgment) N759

Jeffrey Balakau v The Independent State of Papua New Guinea (un-numbered) OS 401 of 1995

Counsel:

P Mogish for the State

M Kua for the Accused

4 June 1996

BATARI AJ: When this case was called yeay, Public Prosecrosecutor, Mr Mogish applied for adjournment and cited unavailibility of witnesses due to inadequacy of time given to arrange their attendance.

Mr Kua for the accused od the application with much much vigour on the basis of the case having been fixed for trial and the accused’s right to a “fair trial within a reasonable time” under s.37(3) of the Constitution.

The order of events which delayed the speedy trial of the conspiracy charge were that; the accused was committed on 5 May, 1992 for trial on one charge of conspiracy and two charges of assault. OJuly, 1992 he sought a re a review of the committal orders in the National Court. This was refund in Octobertober/November of 1993 the accused was tried and dealt with on the two charges of assault. Thereafter, the coacy c, sge, seemingly got lost in the system. The case re-surfaced itembptember, 1995 1995 following the Ombudsman Commission ral of the accused to the Public Prosecutor alleging certain misconduct in office based on t on the same facts which supported the concy charge. However, ter, the cas not not listed as the accused had filed Originating Summons challenging his prosecution. Thalication was dismissed ssed on 17 November, 1995. The case was sted but adjo adjourned on two occasions because either thesed or his lawyer failed to attend. December, 1995, the trialtrial was fixed to comm commence on 16 April, 1996. On 7 Ap1996 lawyer the acce accuseccused wrote to the Public Prosecutor advising of a judicial review being filed against the National Court deciof 17 November, 1995. On 16 Apr vacated the tria trial dates and stood the matter dowr down for mention on 1 July, 1996 under a presumptive view that a stay of prosecution was consequential to the filing of the Review. I rled the case and allocallocated new trial dates commencing 22 May, 1996. On that date, I granteadjo adjournment on prosecution’s application but agaort-dated re-listing to 27 May, 1996.

In this applicpplication, Mr Mogish in effect seeks vacation of the trial dates and allon of new dates which would ould give prosecution sufficient time to prepare and assemble witnesses. I believe he also relies on the affidavit of Mr Sambua sworn on 31 May, 1996 in his submissions.

First, I deal with the constitutional effect of they which has now reached 4 years and 1 month. This period of waito be brbe brought to t to trial clearly offends against s 37(3) of the Constitution. His Honous, J had describecribed the delay in November as “outrageously long” (Jeffery Bu v The State OS 401 dated ated 17 November 1995 - un-numbered). Hisur was then consideringering the same issue of delay on the accused’s application to stay the conspiracy prosecution against him or alternatively to dismiss it.

I consider that, win an application for adjouadjournment the question of delay is raised under Constitution s.37(3), the facts of each particular case should be determinative of whether or not the delay amounts to denial of the accused his rto be brought to tria trial within a reasonable time. If the vi formed that ther there had been a breach of s.37(3), the enforcement of the accused’ht is a matter of discretion and the onus is on the applicaplicant to show that there is special cause to grant adjournment or that the adjournment sought is in the interest of justice. In all case accused is, ins, in my view entitled to a remedy available to him under the Constitution or in law. The form of remedy may beddecided on such factors as:

· ـ &##160; 160 peri period the case hase has been pending since the date of arrest and committal for trial.

·&ـ҈ ;&#16nduct of either party arty which contributed to the dela delay.

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·· ҈ ;&60;; whethercthe hase een fixedfixed for trial.

· & ;d the number of tthe cad bejd bejournp>

In Thee v PPainke [1976] PNGLR 210 prosecution applied for adjr adjournmournment oent of thef the hear hearing of a charge of stealing as a public servant. It had been 146 months sins since the alleged offence was committed, 11 months since the accused was committed for trial and 6 months since the case first came before the Court for trial. During the 6 monthere had had been three adjournments, two of which were at the request of prosecution. O&#8217y, AJ refused the Sthe State’s application for adjour after concluding at p.212:

“In those circumstcumstances, I thought to postpone the trial any longer would be...to deny e accused his right ‘8216;to be afforded a fair hearing within a reasonable time’ as guaranteed by the Constitution.”

In refusing the accused’s application on 17 May, 1995 Los, J concluded that Constitution s. 37(3) does not confer immediate remedy for delay in prosecutions. His Honour&#s view could euld equally be explained that the circumstances of the delay does not justify the enforcement of the Constitutional right “to be afforded a fair hearing within a reasonable”. What appearepeared to infl influenced His Honour’s decision then was that firstly; the applicant contributed to the delay and secondly; he had not even appeared in Court to utilize s. 552(2) of the Criminal Code Act, yet he claimed his right under Constitution s.37(3) had been breached.

In State v Jackson Tita Toamora and Simon Kongie Nunzie, (unreported National Court Judgment) No. N759, the prosecutor applied for adjournment during the trial, to call a witness who was a lawyer then employed in the State Prosecutor’s Office to rebut the evidence of the defendants. The lawas not available onle on the day of the application. The defen had waited for nfor nearly two years and their trial had been precipitated by a s. 552 of riminal Code Act application. Brunto refused thed the aphe application after concluding at p.3:

“The State is not in the position that it has lost a witness through inadvertence, or because a witness has misunderstood instructions. The witness wa a layman.&#an. The witness wasate Prosecuosecutor who made a decision not to make himself available.”

And at:

“The rights of Papua New Guineans to a fair trial within a reasonable time aime are superior to the indulgences of others who wish to go off on long weekends, before the weekend starts. If the State chooses to discharge its public responsibility in that way - then I will protect the individual rights of citizens.”

The authorities indicate that, when a personharged with a criminal offence, he is entitled to a fair trir trial within a reasonable time and it is incumbent on those responsible for fair administration of justice; the courts, judges, magistrates, lawyers, police, correctional officers to bring his case to speedy fruition. In the of breach, he is e is entitled to the protection of his right under Constitution s. 37(3). I d however, think it foll follows that, he is entitled to immediate discharge as a matter of right. If the delay is without nable explanation, the Court may enforce the accused’s right by compelling the trial rial to commence or dismissed the case in iscretion. However, in all case 552 o552 of the Criminal Code should be used as a proa procedure for the enforcement of Constitution s.37(3) breaches. Section) without question,tion, provides a safeguard for accuseds against undue delays of their trials. That right to a speedy trial is itself a substantive ground for an application to be brought to trial under s. 552 of the Criminal Code as per Los, J in Jeffery Balakau v The State (OS 401/95).

I conclude that adjournments and vacation of trial dates should not be readily granted except in special circumstances, quite aside from the requirements of the Constitution s. 37 thereof that when a man is charged, his case must be brought to speedy fruition. The reason mighdue to inab inability of judge, lawyer, accused or witness to attend because of ill-health or a witness is not immediately available due to inadvertence or thatisunderstood instructions or that the adjournment is in then the interest of justice. Any such cation must not anot appear to suggest unfair tactics, delayed justice, inconvenience, or carelessness. Mere consent is not a vread reason to adjourn or p postponement of the hearing. Any adment sought ught aftt after the case is fixed for trial or during the course of trial must alt with on proper considerations of the matters to be rais raised.

I now come to the circumstances of this application. On 1ember, 1995 the case wase was fixed for the first time for hearing. This was done in absence of the accused whose predispon was clearly the prevention of his prosecution than the protection of his right to a speedspeedy trial. The trial dates allocan May, 1996 meant both parties had 4 months to prepare thei their cases and gather their witnesses. ccused however, took fr infr intervening action by seeking a review of the National Court decision. And 9 days bays before the trial was to commence, he th his lawyers advised the Public Prosecutor of the possibilsibility of requesting vacation of the trial dates in view of the judicialew.

On 16 May, 1996 there was no appearance for the the State when the case was called. Mr Sambua explained in his affidavit that he had acted on a certain understanding reached with the accused’s lawyers to defer arrangements for witnesses dance and he had understood the case to be adjourned by consent. A letter tendered aled also confirms communication being entered into on the matter and on the basis of which Mr Sambua may have believed that the Court would vacate the trial dates. Hsence6 May showed also thso that he had acted on that beliebelief.

It is obvious that the accused’s attempted to stall tmmencement of his trial on the eleventh hour is adverse to the Public Prosecutor’s tr;s trial preparations. The witnessesoverseas and and their travel will require time and expenses. ncertainty of the trial pral proceeding no doubt had much bg on the Public Prosecutor’s decision to review his arrangements for witnesses attendttendance. That, in my opinion is nounreasonable consideration.tion.

Having re-called the case, it could not proceed in May sittings for two reasons:

(i)&##160; the witsessee somthef acco according to Mr Sambua’s affs affidavit are in Cairns, Australia could not be called to travel on short notice.

(ii) tho omatr rs aee still in l in progress. It is appathis case will nill not be reached in May.

On 27 May, 1996 the matter was referred for re-listing. The allocated dates g 46 J 46 Jun fixed by the Court asrt as the the earliest possible time the case couldcould be listed for trial.

The competing interests that I must conshere are the interests and rights of the accused to a speedspeedy disposition of his charge on the one hand and the interest of the people that an accused person must be brought to trial, on the other. In the circumstances e dele delay, I find:

(i0; &160; The ed hsd, as is his righ right to do so, taken various actions to oppose speedy proion o case. The result has beevitable able delaydelays.

(ii) &#160 &#Th0; is s t a oase where here the Public Prosecutor has madgenuine attempt to bring the accused to trial noting however the inexplicable disappearancerance of the accused’s case in the s whictribuo the delay.elay.

(i

(iii) The difficulty the cubliseProsecutor is placed in now has been attributed to in some ways by the latest filing of the Review application and the communication between the accused’s lawyers and thlic Putor.

(iv)&#160  &#It ; trite that witnessenesses who are overseas cannot be easily called. Time is of essence to arrange their travel and equally important to confirm their availability.

I conclude that the Public Prosecutor has shown special mstances for his application. It the orders sought.&#160 The ouestion whic which rech remains is the trial date to be fixed for this case. The appropriate st to have have the matter referred back for re-listing. I order

(i) ;160;; &##160; t60;adjo adjournmenrnment is granted.

(ii) ; the trial dat s be vacateacated and the mareferor reing oJune, 1996.

Section 55on 552(2) (Criminal Code Act) application tion by thby the acce accused is noted.

Lawyer for the : P M/Publosecutor

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Lawyerawyer for the Accused: Joe Wal Lawyers